Lately there have arisen religious difficulties to which this section has no application. By the Confederation Act (Section 91) the Dominion Parliament has exclusive jurisdiction as to marriage and divorce; jurisdiction which would appear to relate to capacity as to marriage. By Section 92 in each province the legislature may exclusively make laws as to “the solemnisation of marriage in the province,” which would appear to extend to all matters affecting the form and ceremony; a division of powers certain to produce sooner or later conflicts. Recently the Ne temere decree was promulgated in Canada. The effect upon Roman Catholics has been considered in what is known as the Hebert case, the chief facts of which were these: Eugene Hebert and Emma Clouatre, both Roman Catholics, were married by a Protestant clergyman. The marriage was declared null and void by Archbishop Bruchesi. His decision was confirmed by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau, who held that any officer qualified by the State to marry persons could marry persons of any religious faith; that the Ne temere decree had no legal validity and was binding only upon the consciences of Roman Catholics.
To quote a report of Judge Charbonneau's judgment:
“I do not think that the Roman congregation ever intended the Ne temere Decree to have a civil effect. It applies to Roman Catholics only. As for the Archbishop's nullification, it has the same legal effect, but not more than the decree upon which it is [pg 101] based. It simply declares that no Catholic marriage ceremony was performed.”—(Globe, Toronto, February 23rd, 1912.)
So far as I know, there has been no appeal to the Judicial Committee, and I take it that Judge Charbonneau's decision is binding in Canada.[92]
In the Constitution of the Australian Dominion is a provision similar to that quoted above from the Constitution of the United States. (Section 116):
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the constitution.”
This enactment, so far as I am aware, has not been the subject of interpretation. Religious equality in Australia has virtually no history.
IV. Safeguards for Ireland
I come to the position of things in Ireland. It may be well at the outset to make clear two points. The first is the present legal status of the Roman Catholic Church in that country. It is the same as that of any other voluntary association; its position theoretically [pg 102] no better and no worse. It possesses autonomy; it enjoys freedom as to doctrine and worship; its constitution is not interfered with; it regulates clerical education; it nominates its bishops; it administers its property in its own way.
It may thus enjoy immense power, especially if there be no true national system of primary education; it may well be doubted whether it possesses as much power in any other country as in Ireland. But like other voluntary religious associations the Catholic Church is not wholly withdrawn from the supervision and control of the Law Courts. A series of decisions of our highest courts with reference to Churches in Ireland and Scotland, and the colonies, have laid down certain principles equally applicable to the Roman Catholic Church and to all other religious bodies; in particular, these principles: that the State can exercise control over all religious bodies possessing property when it is proved to be contravening its rules to the injury of members. In the case of societies resting upon a consensual basis, Courts of Justice are bound when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to inquire into the laws or rules of the Society.[93] Further the authority of a Church cannot be legally used for purposes inimical to the State or contrary to any statute. It may make rules for its own members; it cannot enforce them against others; they are invalid against them if contrary to the terms of any statute. It may, for example, declare that it will not regard a marriage with a deceased wife's sister as valid; it may refuse to recognise as members those who so marry. But such [pg 103] rules will not legally invalidate a union which a statute has legalised. Probably this has not always been fully borne in mind by those who have denounced the promulgation of the decree Ne temere in Ireland. Resolutions have been passed against it here and in Ireland. Many Nonconformist bodies have protested against the promulgation of the decree in British Dominions. The decree is, I think, objectionable for several reasons, and not least because it discourages mixed marriages, an effect which seems to me deplorable, for nothing is better calculated to put an end to uncharitableness and hatred than the frequency of such unions. But while such a decree may do harm, it will have no direct effect except as between the members of the Catholic Church in foro conscientiæ. The Irish marriage law, which with a few exceptions is the same as the English, is binding on all Catholics and Protestants. Lord Llandaff who speaks at once as a lawyer and as a Catholic, puts this point clearly: